From the Aztecs to the Kalahari Bushmen -- Conservative Justices' Citation of Foreign Sources: Consistency, Inconsistency, or Evolution?

Yale Journal of International Law Online, Volume 41, 2015

8 Pages Posted: 5 Aug 2015 Last revised: 24 Aug 2015

See all articles by Zachary D. Kaufman

Zachary D. Kaufman

Boston University - School of Law; University of Florida Levin College of Law; Washington University in St. Louis - School of Law; University of Houston Law Center; Stanford Law School; Yale University - Law School; Harvard University - Harvard Kennedy School (HKS)

Date Written: 2015

Abstract

This article, authored by Dr. Zachary D. Kaufman, is published in the online companion of the Yale Journal of International Law.

On April 28, 2015, there were few surprises at the Supreme Court. During oral argument in Obergefell v. Hodges, counsel for each side mostly rehearsed the usual marriage equality arguments around rights, dignity, fairness, love, procreation, family, tradition, religion, and slippery slopes. Almost two months later, on the historic day of June 26, the Supreme Court announced its decision in Obergefell. The 5-4 majority opinion held that the Fourteenth Amendment requires states both to license marriages between two people of the same sex and to recognize such marriages if lawfully licensed and performed out-of-state.

What stands out as different in the reasoning of Obergefell is that members of the Court’s conservative wing invoked foreign law in a constitutional case about a domestic matter. By doing so, the Court’s conservatives appeared to contradict their own previous statements about the role of foreign law in interpreting the U.S. Constitution. Besides legalizing marriage equality, Obergefell may therefore also set an important precedent as to the appropriateness of citing foreign sources in constitutional decisions.

Keywords: U.S. Supreme Court, U.S. Constitution, Fourteenth Amendment, Precedent, Obergefell, Hodges, Foreign Sources, Foreign Law, International Law, Magna Carta, Marriage, Marriage Equality, Same-Sex Marriage, Family, Culture, Tradition, Capital Punishment, Death Penalty, Abortion, Sodomy, Greece

Suggested Citation

Kaufman, Zachary D., From the Aztecs to the Kalahari Bushmen -- Conservative Justices' Citation of Foreign Sources: Consistency, Inconsistency, or Evolution? (2015). Yale Journal of International Law Online, Volume 41, 2015, Available at SSRN: https://ssrn.com/abstract=2638906

Zachary D. Kaufman (Contact Author)

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